Miners warn of third-party legal action to stop strike

Release date: 29/01/2013

Two multinational coal companies have taken the unusual step of threatening legal action against union workers involved in a pay dispute with a different company.
Anna Patty, Sydney Morning Herald, 29 January 2013

Train drivers who work for Pacific National Coal a division ofAsciano, Australia’s largest rail freight and port operator are threatening to strike after pay talks collapsed.

Xstrata Coal NSW, which is not involved in the salary negotiations, is threatening to take legal action against the workers if they strike. The threat was outlined in a letter to the Rail, Tram and Bus Union last week.

The dispute is expected to fuel a national union campaign against the return of Work-Choices under a Coalition government led by Tony Abbott if it is elected this year.

The Xstrata chief operating officer, Ian Cribb, wrote that his company had contracts with Pacific National for rail freight of 30 million tonnes of coal each year from its mines in the Hunter Valley and Tahmoor, south-west of Sydney.

"If any industrial action is organised by the RTBU, and engaged in by its members employed by Pacific National Coal, it will cause significant harm to the business of Xstrata Coal," Mr Cribb said.

"Xstrata Coal is entitled to take all necessary steps to prevent any harm to its business.

"This may include the commencement of proceedings in a court or tribunal to stop or prevent industrial action from being taken without further notice to the RTBU." Whitehaven Coal has also threatened to make a complaint to the Fair Work Commission.

The union’s national secretary, Bob Nanva, said it was "unheard of" for a third party not directly involved in an industrial dispute to threaten legal action. He said the strike action would be protected, having been approved by Fair Work Australia.

"This is a co-ordinated assault on the right of union members to collectively bargain and strike," he said. "This is a forerunner to what will happen if Tony Abbott is elected prime minister." University of Sydney Emeritus Professor Ron McCallum, who specialises in industrial law, said it was unlikely the union could be successfully sued if it was taking protected strike action, unless it had failed to satisfy all requirements under the Fair Work Act.

"If the action is protected and they are validly striking during bargaining over content that can be included by law in a collective agreement then that action is protected and one can’t bring legal action against it," he said.

Pacific National’s NSW coal division has been in negotiations for a new enterprise agreement for 12 months. The union said most of its members were on annual base salaries of $63,000.

Asciano recently announced a 42.8 per cent profit after tax and total revenue of $3.5 billion an increase of 11.7 per cent on the previous financial year.

Asciano is also the parent company of Patrick, which was involved in the waterfront industrial war in 1998 and was reportedly planning to lock out wharfies in a dispute in 2011.

A spokeswoman for Asciano said its coal division has been negotiating in "good faith" with the RTBU and was keen to finalise a new enterprise agreement.